Is it possible to unplug a jury from the ubiquity of social media? I think not.
When there is a criminal case with a newsworthy defendant, about 48% of Americans obtain information on the case almost instantaneously.[i] Notably, about 31% of the previously mentioned 48% of Americans rely on Facebook to deliver their news.[ii] The media’s ability to disseminate breaking news in real-time poses challenges to the Sixth Amendment because it creates the possibility that most, if not all, of the jurors sitting for a case, have been exposed to pre-trial media. The legal issue arises from the Sixth Amendment’s guarantee that a criminal defendant is tried by an impartial jury from the state and district in which the crime is committed. In a digital age where the widespread use of social media has become nearly untamable, the guarantee of an impartial jury can become difficult, which creates a direct conflict with the Sixth Amendment’s guarantee of an impartial jury.
Often, the most impactful revelations of a crime occur at the outset of the crime itself. Such revelations may come in the form of video recordings of the crime in action, photographs of the victim, footage of police interactions, or media coverage of the community’s response. Although the ability to cover all aspects of a case in real-time makes for great evidence, exposure to such evidence can also be highly inflammatory to jurors.
Judges face numerous challenges controlling media influence on jurors. In an effort to redress the influence that the media has on a juror, courts across the country have developed special instructions that address the use of social media by jurors.[iii] The new set of jury instructions proposes reminders about social media restrictions before and throughout the trial and cautions jurors about accessing their email or the internet, as opposed to the 2012 model jury instructions which were drafted when social media was less prominent. The new set of jury instructions illustrates the consequences that a social media post may have on a case. For example, the use of a smart device “may inadvertently expose you to certain notices, such as pop-ups or advertisements, that could influence your consideration of the matters you’ve heard about in this courtroom.”[iv] Additionally, the instructions explicitly advise jurors to ignore any information they might see about the case on social media by stating, “you must ignore any information about the case you might see, even accidentally, while browsing the internet or on your social media feeds.”[v]
By the same token, the media has become an essential tool by shining light on incidents that reveal racism and bigotry in our criminal justice system.[vi] For instance, in the case of Derek Chauvin, a 17-year-old witness recorded Chauvin, who at the time was a police officer for the city of Minneapolis, pressing his knee into the neck of handcuffed George Floyd. The witness uploaded the video to Facebook and the video sparked a series of protests over police brutality and racism all throughout the country.[vii] While the ability and ease of spreading news on social media platforms has brought attention to meaningful social issues in the United States, its impact on potential jurors is guaranteed. News, whether accurate or not, can create opinions that are resistant to change, especially when the information aligns with the juror’s preexisting biases. An experiment with mock jurors revealed that those who were exposed to pretrial publicity against the defendant were more likely to convict the defendant, as opposed to mock jurors who did not receive the same pretrial information.[viii]
Opinions are the building blocks that create a reasonable and rational person, therefore asking a person to suppress their opinions is an arduous task. Judge Audrey G. Fleissig, Chair of the Committee on Court Administration and Case Management, reiterates that “in a world where social media can overwhelm us with information and misinformation, it’s important to remind jurors again and again not to be distracted from their civic duty.”[ix]
[i] See Mayson Walker & Katerina Eva Matsa, News Consumption Across Social Media in 2021, Pew Rsch. Ctr. (Sept. 20, 2021), https://www.pewresearch.org/journalism/2021/09/20/news-consumption-across-social-media-in-2021/.
[ii] See id.
[iii] See New Jury Instructions Strengthen Social Media Cautions, U.S. Cts. (Oct. 1, 2020), https://www.uscourts.gov/news/2020/10/01/new-jury-instructions-strengthen-social-media-cautions.
[iv] See id.
[v] See id.
[vi] See Sudiksha Kochi, Social Media Was a Major Witness in Chauvin Trial, VOA (Apr. 21, 2021), https://www.voanews.com/a/student-union_social-media-was-major-witness-chauvin-trial/6204895.html.
[vii] See Derick Bryson Taylor, George Floyd Protests: A Timeline, N.Y. Times (Nov. 5, 2021), https://www.nytimes.com/article/george-floyd-protests-timeline.html.
[viii] See Angela M. Jones, Chauvin Conviction: 2 Things to Know About Jury Bias and 2 Ways to Reduce it, The Conversation (Apr. 21, 2021), https://theconversation.com/chauvin-conviction-2-things-to-know-about-jury-bias-and-2-ways-to-reduce-it-159330.
[ix] See id.
